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The Law and You: Changing Court Orders about your children

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Court Orders outline the arrangements you and the other parent must follow for your children.

What happens, however, if one of you wants the Court Orders changed? While it’s possible, under some circumstances, to have them changed, it’s important to go about it the right way.

This column talks broadly about changing Court Orders and under what circumstances they might be changed by the Court. You may need to seek legal advice from a firm specialising in family law on your individual case.

Can I just change the Court Orders myself? Can the other parent?

Neither parent can change Court Orders on their own—without a good enough reason such as child abuse or family violence—without facing consequences for breaching them. It’s important to remember that these orders are issued by the Court so both parents are obliged to comply. Neither parent is free to just change them for any reason. They can only be officially changed by the Court.

How are Court Orders changed?

It’s possible to change Court Orders if the circumstances warrant it and there’s evidence to support this. A two-part process is usually involved.

  1. You must first get a Section 60I Certificate from a registered family dispute resolution practitioner (such as a child and family psychologist or lawyer with such qualifications, or Relationships Australia or Conflict Resolution Services. This Certificate states that:
    1. you and the other party have tried to agree on changes through mediation, or
    2. you were willing to participate in mediation but the other party refused to, or
    3. it wasn’t appropriate to participate in mediation because of child abuse or family violence or a risk of child abuse or family violence.
  2. You next make an application to the Court, attaching the Section 601 Certificate to your application.

When can the Court change Court Orders?

Two avenues are available:

  1. Where there are Contravention proceedings

This is where one parent alleges that the other parent has breached the Court Orders. So, for example, if one parent doesn’t make the children available to the other, as stipulated in the orders. This is a breach.

To help resolve the matter, the Court may vary the orders to avoid further breaches. These proceedings are quasi criminal and technical. They involve the Judge questioning if the parent who made the breach pleads guilty or not guilty to the allegations. The parent can plead guilty but have a reasonable excuse for not complying with the Court Orders. This will form part of the evidence at the trial.

  1. Where there has been a significant change in circumstances

To vary a Parenting Order without a Contravention Hearing, the Court must be satisfied there is a significant change in circumstances. This is the only reason the Court can re-open the matter to consider making new Court Orders. Key is the term significant change.

The reason for the significant change principle is that the Court doesn’t want children to constantly be embroiled in litigation. This is likely contrary to their interests.

Whether a party succeeds in arguing there has been significant change depends on the facts and the nature and degree of the changes, compared to the Court Orders in place.

What will the Court consider?

The court will consider several facts, including:

  1. Past circumstances. What was the context in which the current Court Orders were made? Was there a hearing where parties were cross examined? What evidence was the decision based on? How old are the orders? Were they made by consent?
  2. What impact, if any, will the changes have on the child and both parents?
  3. Will it be detrimental for children if they have to be involved in court proceedings?
  4. What is the precise nature of the dispute between the parties?

What happens if the Court decides to change the Court Orders?

The Court will explain the changes to both parents and issue a new set of written Court Orders, or amended ones. These must be followed by both parents. If you don’t already have a family law lawyer and aren’t clear on what the revised Court Orders mean for you, it’s best to consult a lawyer before you agree to them.

What do I do if I believe my circumstances amount to a significant change to the Court Orders?

If you think your circumstances amount to a significant change since the original Court Orders were issued, contact a family lawyer to discuss your options. The last thing you want is to inadvertently breach an order.

I don’t have a Court Order but do have a Parenting Plan? Do the same rules apply?

A Parenting Plan can be changed. However, it’s important to understand that breaches to such a plan (written or verbal) aren’t enforceable by a Court. This means that if something goes wrong, the Court can’t do as much as they can if there are Court Orders in place. Ideally you should discuss your concerns with a lawyer experienced in family law.

Tip: This column does not apply to changing Court Orders made in relation to financial matters. This is possible, but the circumstances are exceptional.


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